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Kinship, Marriage, and Divorce in Comparative Family
LawAuthor(s): Aaron V. CicourelSource: Law & Society Review,
Vol. 1, No. 2 (Jun., 1967), pp. 103-130Published by: Wiley on
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KINSHIP, MARRIAGE, AND DIVORCE IN COMPARATIVE FAMILY LAW
AARON V. CICOURE
University of California, Santa Barbara
SOCIOLOGICAL STUDIES OF the family, ethnographic studies of
kinship and marriage, and legal accounts of family law have been
neither clear nor comparable in explaining how members perceive and
interpret ar- rangements such as "marriage" or "divorce." These
comparative studies invariably include case materials,' and
accounts which presuppose vari- ous linguistic and para-linguistic
phenomena,2 meanings, and unexpli-
AUTHOR'S NoTE: This paper was written while the author held a
research appointment at the Center for the Study of Law and
Society, University of California, Berkeley. I am grateful to the
Law & Society Association and the Latin American Research
Program at the University of California, Riverside, for small
grants that enabled me to obtain assistance in examining
comparative materials from Spanish speaking countries on marriage
and divorce. I wish to acknowledge the excellent assistance of Mrs.
Regina Arriaga and Mrs. Nancy Lopez Nisnovich.
1. Cf. N. BELL & E. VOGEL, eds., A MODERN INTRODUCTION TO
THE FAMILY (1960); W. GOODE, WORLD REVOLUTION AND FAMILY PATTERNS
(1963); M. GLUCKMAN, ORDER AND REBELLION IN TRIBAL AFRICA
(1963).
2. Para-linguistic phenomena, such as voice intonation and
gestures, depict social structure through the use of language
categories and body movements by members. The problem of what the
observer means when he states that the crowd was "unruly," the
adolescent was "hostile," or the group's mood was "serious" emerges
sharply in animal studies where the problems of adequate
description have been addressed for some time. Cf. H. Elliot,
Animals and Man: Notes on Animal Behavior Studies as a Model for
Scientific Sociology, unpublished master's thesis, California
(Berkeley), Dept. of Sociology, 1966; C. SCHILLER, INSTINCTIVE
BEHAVIOR (1957); I. DEVORE, PRIMATE BEHAVIOR: FIELD STUDIES OF
MONKEYS AND APES (1965). Studies of animal
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LAW AND SOCIETY REVIEW
cated usages. The precise character of comparable behavior
remains obscure. Truncated categories translated from one language
to another become verbal signals disengaged from the actual
perception of social behavior and its interpretation in subsequent
descriptions. The cate- gories of different scholars are presented
as equivalence classes in which the adequacy of the descriptions is
never an issue because the author assumes that the reader "knows"
what the author "means." Although the categories employed describe
general routine practice of members, there is little concern with
the language, gestures, voice intonation, and body posturing
accompanying the action scenes to which general categories
refer.
Anthropological or sociological accounts are seldom clear about
how members arrive at their decisions by their experience of
objects and events over time. If we assume members' everyday
decisions are gov- erned by properties such as ambiguity,
typicality or "normalness" of objects and events, and further that
members seek through decisions to "close"3 or terminate
relationships and dilemmas so that further in- ference and action
is possible, then such properties become integral to knowing what
the researcher describes as having "happened." The fol-
social structure invariably presuppose that certain body
movements and gestures mean something similar to the common sense
understandings employed by humans in de- scribing their own social
interaction. Animal studies, therefore, like small group studies of
humans, presuppose an unexplicated body of common meanings for
making sense of what happened; these common meanings remain "what
everybody knows" rather than empirically investigated
phenomena.
3. I am suggesting that the ways in which members of different
cultures or societies decide to "close" the unfolding or emergent
and routine features of everyday practical activities become the
central properties sociologists must investigate if we are then to
compare general practices or rules across cultural, societal, or
national boundaries. The problem of "closing" unfolding or routine
features of practical activities can be linked directly to the
measurement of social events by reference to the ways in which
members, singly, in social exchanges, and bureaucratic
arrangements, decide that some event or sequence of events occurred
or happened and "bounds" events such that a judgment is made that
something is an account with a "beginning" and "ending."
Practical reasoning or decision-making provides members of a
group with the grounds to "close" an act or sequence of events so
that it assumes a bounded char- acter and thereby permits counting.
Thus, the "cases" of law that are invoked as bounded instances of
some set of activities take on the character of homogenous entities
which can be counted in support of a particular or general
position.
Each event or sequence of events can be broken down into various
parts. The theoretical and empirical problems of infinite regress
into further divisions lead re- searchers to decide that the event
or sequence of events can be closed and hence viewed as
"terminated" and a codable unit. See H. GARFINKEL, Remarks on
Ethno- methodology, forthcoming.
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
lowing passage, for example, presumes the reader "knows" what
the writer is "talking about."
Thus in Anglo-Saxon England a marriage, the legal union of man
and wife, was a compact entered into by two bodies of kin. As the
Church steadily increased in power and in control of social life,
marriage became the concern of the Church and was regulated by
canon law. There was a new conception that in marriage the man and
woman entered into a com- pact with God (or with His Church) that
they would remain united till parted by death. The marriage was
under the control of the Church; matrimonial cases were dealt with
in the ecclesiastical courts.4
As a set of general rules or practices, the above quotation
appears to be quite reasonable, for we are not faced with
articulating thousands of particular cases with the general rules
or practices, but "feel" that what is being said "makes sense."
The comparative study of social arrangements, phenomena labeled
"marriage" and "divorce" in Western societies are assumed to
correspond with activities in non-Western societies to which social
scientists attach similar labels. The routine social encounters and
practical decision- making that make up activities labeled
differentially as forms of social organization, remain unclarified
by researchers even though it is pre- sumed that members' and
researchers' descriptive categories can be appropriately "closed"
to generate sets permitting counting and ordering of phenomena.
Comparative analysis must consider the manner in which members
employ categories to depict objects and events, the method by which
the researcher objectifies5 what the member responds to in his
descrip-
4. A. RADCLIFFE-BROWN, Introduction in AFRICAN SYSTEMS OF
KINSHIP AND MAR- RIAGE 43 (1950).
5. Members of social groupings pay attention to an environment
of objects with some stock of knowledge or presuppositions.
Researchers often obtain reactions to some ambiguous phenomena
rather than mapping the reaction into the elements of an
"objectifiable" social scene. The term "objectifiable" assumes the
existence of a theory that will explain an ideal sound film or
video-tape of "what happened," or at least a tape recording,
verbatim notes by the observer or court recorder, or fragments of
verbatim notes by the observer of routine daily interaction. But,
in fact, "objecti- fiability" may take at least three forms for
researchers differentially removed from actual scenes. It may
simply be a verbatim interview of "what happened" according to the
interviewer's attempt to describe the respondent's environment of
objects via a series of questions and answers. A second and less
objective account would be a fixed-choice questionnaire where the
observer's categories are forced upon the respon- dent without the
subject's feedback of his own categories. Finally, there might be
an informal or official report submitted by participants as part of
a bureaucratically
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LAW AND SOCIETY REVIEW
tions, and the exact points at which those descriptions become
adequate grounds for further inference and action. Legal
scholarship and social science research has traded on, rather than
studied, the common sense categories used by members. Accordingly
it is difficult to untangle researchers' use of descriptions and
categories from members' usage, and how both include or exclude,
impute or impose meanings by ref- erence to objectifiable or
imagined properties "out there." 6 When members are asked about
usage the researcher often imposes "structure" by the formulation
of the question.
The use of categories, whether by members for everyday practical
activities or by researchers in seeking to characterize socially
organized activities of members, is designed to facilitate
practical actions. Hence, simply to speak of kinship and divorce
"comparatively" as a "substan- tive problem" to be "understood" or
"improved" presupposes that our
organized procedure. The researcher's task in each of these data
generating settings is to estimate how some description of "what
happened" is influenced by the re- spondent's practical reasoning
and stock of knowledge at hand, that is, his pre- suppositions
about what is known in common and taken for granted by him in
making sense (i.e., arriving at practical decisions) of the social
scene. Each of the three strategies, or any combination of them, is
cross-cut by three general problems that are part of the attempt to
objectify the materials we label data: (i) The linguistic, semantic
and meta- or usage semantics of conversational material that
provide the researcher with categories that members of the society
employ to depict themselves, others, and different events or
objects; (ii) the para-linguistic properties of com- munication
such as voice intonation and gestures for communicating meaning;
and (iii), closely related to (ii), what we might loosely call
"postural" properties that include body motion and position. These
dimensions pose the more basic problem of how conversational
materials, and their properties, are transformed into the more
"managed" forms-interviews, questionnaires, and written reports or
documents. Inter- views and questionnaires usually are removed from
the actual conditions of social interaction in which conversations
occur (where the conversation involved in conducting the interview
includes similar problems but divorced from the substantive context
of routine conversations), and therefore in doubtful correspondence
(seldom established empirically) with the actual activities to
which the interview and questionnaire items refer. Reports and
documents, because they can be drafted and re-drafted, acquire the
largest number of "managed" appearances because contingencies of
actual social interaction can be eliminated, altered, or distorted.
The sociolinguistic problems here are only now being addressed by
sociologists. The para-linguistic properties of con- versations are
seldom describable such that any reader can readily understand what
the observer intends; the reader must assume that he "knows" what
the observer "means."
6. Because we cannot objectify the daily activities of members
(in any culture or society) adequately at this time, we are often
forced to equate abstract categories rather than the linguistic and
para-linguistic properties of actual behavior and how members
accomplish daily tasks. For examples, see RADCLIFFE-BROWN, AFRICAN
SYS- TEMS OF KINSHIP AND MARRIAGE (1950).
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
research vocabulary contains categories distinguishable from
members' terms. If researchers are to transcend both linguistic
confounding and an apparent infinite regress, they must make some
attempt to objectify the environment of objects members and
researchers take into account when engaged in emergent social
interaction and generating reports and documents. The demand for
practical solutions to social problems like "divorce,"
"delinquency," and the like, presupposes that the "prob- lems" be
given "sociological" attention for "solutions," and should not be
"confused" with pedantic "methodological and theoretical"
issues.
SOURCES OF RESEARCH DATA
The sociologist's research materials begin with the ways in
which lawyers label conditions of family life and family structure,
refer to societal values, refer to norms governing family
interaction in the course of making decisions, advising clients,
arguing before a judge, and bargaining with a district attorney or
social worker. The theories em- ployed by jurists, law school
professors, practicing lawyers, law enforce- ment officials, and
ancillary personnel associated with the court provide the
sociologist with contrasting perspectives, to be treated as data
which can be compared with some environment of objects the
researcher can observe with independent procedures.
The verbal and non-verbal behavioral referents and descriptive
accounts provide the sociologist with linguistic information about
mem- bers' intended reference to the socially organized activities
being studied. Hence, members' use of language categories provides
the sociologist with depictions of the social structures. Official
and unofficial encounters pro- duce exchanges of information which
may not enter into documents or reports. How the legal or social
objects being studied are depicted in conversations as opposed to
documents or reports provide the sociologist with members'
commitments to and justifications of theories of lay social
structures, and how practical matters are decided in day-to-day
social interaction. Some idea of how members communicate in con-
versational exchanges enables the sociologist then to ask how
different forms of communication are to be analyzed given the fact
they represent different layers of meanings as they are
progressively removed from the primary source of contact with
members' environments of objects. The socially organized activities
which led to the production of a docu-
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LAW AND SOCIETY REVIEW
ment or memorandum provide the observer with the necessary back-
ground expectancies7 that he must take into account to interpret
the text. Documents and memoranda are like frequency distributions
of objects and events; they represent truncated versions of actual
events and the contextual appearance of objects rather than more
redundant and ambiguous conversations.
When frequency distributions of age, sex, divorce, child custody
cases, adoption, marriage, and the like, are presented as evidence
of socially organized activities, the researcher creates
explanations that link the independent variables with dependent
variables, but where the contingencies of actual exchanges are
excluded in accounting for how things "happen." Hence, in surveys
the questions provide the respon- dent with ready-made categories
that are already coded both as to potential meanings to different
respondents, and analytic utility vis-a-vis assembling
cross-tabulated findings. The objective is to short-circuit the
actual social encounters that may be involved in producing an
abstract outcome (e.g., the number of divorced women who will
remarry) so as to summarize the activity for a population, and then
armed with the table seek a functional or general explanation as to
what social factors could have produced such findings. In
"explaining" how the cross- tabulated responses are to be seen as
reflecting particular social forces, the researcher "creates" the
social structures. The "discussion" that fol- lows the presentation
of tables becomes an imaginative set of descriptive statements that
are similar to the kinds of remarks that members use to "make sense
of" a document or report or memorandum. The cate- gories of
language used by survey researchers are based on ideals rooted in
common sense or lay notions of how "things happen" or "what hap-
pened." In both survey-statistical and participant observer or
content analyses of documents, we are at a loss to specify the
referents in ob- jective terms so the reader can check out the
researcher's attempts at verification. If we are to transcend the
common sense reasoning codes that enter into such depictions, some
way of objectifying both the actor's and researcher's environment
of objects must be approximated.
The respondent's remarks, the judge's opinion, the lawyer's
brief, the police report, the client's comments to his counsel, the
psychiatrist's
7. The concept of "background expectancies" or what Schutz
describes as what everyone knows and takes for granted, is derived
from H. Garfinkel, Studies of the Routine Grounds of Everyday
Actions, 11 SOCIAL PROB. 225 (1964). See also A. SCHUTZ, COLLECTED
PAPERS (1962).
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
report, the references to common law traditions, are all data
even when the environment of objects to which they refer is not
available to the researcher for independent examination. The
conceptual apparatus re- quires more elaboration as we move away
from an initial encounter being described-the unofficial exchanges
leading to formal statements -toward truncated oral or written
versions of "what happened." The problems of measurement here
cannot be resolved if we cannot come to grips with how
communication is achieved in everyday life. Attempts to use surveys
or demographic materials, counts of types of law cases or types of
judges or "themes" in content analysis, and the like, merely
short-circuit the contextual properties whereby meanings are
encoded and decoded, both in the course of social interaction and
upon later reflection. The short-circuiting enables the researcher
to categorize "what happened" by eliminating the contingencies or
ambiguities that occur during actual encounters. In the absence of
an explicit theory that is independently linked to objectifiable
materials, this is done via the researcher's use of implicit
theories that necessarily contain common sense or lay ideas about
how "things happen" or why people act the "way they do."
MEASUREMENT AND COMPARATIVE RESEARCH
The researcher seeks "underlying patterns" or "concealed"
feelings that might be suggested in the manifest data, and then
utilizes the underlying patterns to explain differences in the
data.8 Survey or demo- graphic analysis leads to inferences about
social organization that only include the actor's experiences and
understanding of "what happened" as "fat points" or collapsed
unambiguous attitudes that are crystalized and readily understood
motives to action. The inferences preclude iden- tification of
activities related to divorce which are typically vague and vary
considerably over time; the actual decision-making process
"bounces" around as contingencies emerge. Once such decisions are
"finalized," the process of historicizing "what happened" begins.
In these processes each party may or may not develop an appropriate
ra- tionale to explain the situation to themselves and to others.
What is
8. This statement illustrates "the documentary method of
interpretation." Cf. H. Garfinkel, Common Sense Knowledge of Social
Structures: The Documentary Method of Interpretation, in THEORIES
OF MIND 689 (Scher ed. 1962).
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of interest in court cases, as formally described in law
textbooks, for example, is the way the contingencies are also
eliminated even though an attempt is made to provide a coherent
"story" or sense of unfolding events. The problem is whether or not
such decisions can be viewed as unequivocal outcomes rather than
negotiated and often vague sequences of events that may be
"finalized" by default or the inactions or arbitrary actions of
others.
One way of putting this problem of the documentary method of
interpretation into another context that would provide both lawyer
and sociologist with some common ground is to refer to a
distinction made by both John Rawls and H.L.A. Hart between the
justification of an institution or rule and the justification of a
particular action falling under the institution or rule.9 The
reader may quickly say to himself that this is nothing more than
the old problem of articulating policy with practice. Such a
conclusion would miss the point that we do not have available a set
of propositions and correspondence rules, a theory, whereby the
articulation of policy with practice can be made so that some group
of lawyers or social scientists can readily agree. Nor is it
possible to show that a set of procedures exist which, if followed,
will produce the same outcome when attempts are made to articulate
general policies with particular cases. I make this issue central
both to lawyers and sociologists because the former have always
been in the business of interpreting statutes or common law
practices vis-a-vis particular cases over time, while the latter
have been assuming that their theories of structure and process
explain "data."
In the remainder of the paper I assume the following problems
are integral to any study in the sociology of law. How do persons
trained as lawyers come to interpret the existing statutes or
common law tradi- tion when confronted by particular cases? In
arriving at interpretations and decisions, how do such
professionals depict the social structures or elements of social
organization by reference to what is "known" or "true" or
"probable" about everyday life? What social meanings do
professional
9. So far I have tried to show the importance of the distinction
between the justification of a practice and the justification of a
particular action falling under it by indicating how this
distinction might be used to defend utilitarianism against long
standing objections.
John Rawls, Two Concepts of Rules, 65 PHILOSOPHICAL REV. 3.18
(1955); H.L.A. HART, THE CONCEPT OF LAW 86 (1961) seems to hint at
a similar distinction. For a general discussion of rules see D.
SHWAYDER, THE STRATIFICATION OF BEHAVIOR 233-80 (1965).
? 110.
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
lawyers and jurists impute or take for granted when they seek to
"make sense of" clients, witnesses, experts, and other lawyers and
jurists, in deciding "what happened" and arriving at decisions
about "just" or "legally binding" courses of action? How do
prospective clients or wit- nesses report "what happened" in
official and unofficial legal contexts? The methodical ways in
which laymen decide they "understand" each other become the basis
for using descriptions as the means for "seeing" the object or
knowing "what happened."'0
The study of comparative family law, via an examination of
kinship, marriage, and divorce, cannot be undertaken by ignoring
what is pro- posed as comparable. How can we establish procedures
for comparing descriptive statements about social interaction
within and outside of bureaucratic settings? A key feature of the
problem of comparative analysis might be stated as follows:
Comparative analysis across cul- tures or societies requires the
study of practical reasoning or decision- making so that the
particulars of action scenes in their course and ecological
settings can be articulated with the general language cate- gories,
and policies or rules invoked for comparable or contrastive
purposes.
KINSHIP, MARRIAGE, AND DIVORCE AS FORMAL CATEGORIES
Many anthropologists analyze kinship terminology elicited from
native speakers in the same way that sociologists analyze divorce
statistics: as formal properties of social organization that are
disengaged from the
10. Two further points: first, the descriptions contained in
conversations or docu- ments used to "see" or "understand" or
"know" an object or event, provide methodical arrangements for
revealing the social structures or elements of social organization
in- tended by the reader, speaker, and hearer. Second, if the term
"comparative" is to have any consistency, the comparison of
language categories and descriptions must be articulated with
procedures for comparison of the daily activities to which the
categories and descriptions are sign functions in different
societies or cultures. Comparability is not merely making abstract
truncated references to different practices in different countries
by quoting statutes or even descriptive studies, but demonstrating
the com- parability of observed activities and language categories
from which inferences are to be made. Statements by persons labeled
lawyers, jurists, clients, witnesses, are not automatically "data,"
unless we address how persons in everyday life "see" events and
objects via the descriptions they produce, the kinds of background
expectancies or tacit knowledge that are employed in producing
utterances and interpreting them, and the relation between events
as objectifiable activities and their selective interpre- tation
via lay or scientific theories.
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unfolding and emerging interaction scenes which make up the more
abstract activities we label "groups," "institutions,"
"bureaucracies," "nation-states," and the like. The formal
practices assumed to prevail in maintaining kinship or dissolving
families are stated as general rules followed by "well-built-in"
members, that is, members socialized to pre- sumed dominant norms
and values of the society. But this is like saying that members are
"programmed" during the period of socialization so that adult life
can maintain an ordered quality over generations. Hence, each
society's theory of history, particularly its own, whether an oral
and/or written tradition, is in correspondence with the norms and
values that are inculcated via the socialization experience. The
table of or- ganization or structural-functional theory is similar
to saying that gen- eral policies or rules are clearly articulated
with the particular events or cases to form the basis of everyday
social life. The point I wish to make is that we use language
categories and general policies or a rule to "close" our relations
with others and thereby fit particular cases or emergent social
interaction into more abstract meaning structures that are
disengaged from particulars, even though the latter are seen as
instances of the general policy or rule.
Lawyers and sociologists also utilize kinship terms under the
assump- tion that "everybody knows" the referents, and that the
terms somehow stand apart from the interaction situations and
conceptions that become attached to social encounters that members
associate with actual kin relations. I am not disputing the use of
kin terms by members in Ameri- can or any other society as general
categories for locating others and themselves in some kind of
abstract social organizational space, but do wish to question the
insistence of certain writers which would lead to measurement
procedures that would be disengaged from members' pro- cedures and
language categories employed in everyday practical actions in
particular contextual settings.1l Such an emphasis would be
concerned with only researchers' rules for "closing" activities to
generate countable sets.
By ignoring the member's tacit knowledge or background expectan-
cies in encoding and decoding communicational material in daily
inter-
11. Ward H. Goodenough, Componential Analysis and the Study of
Meaning, 32 LANGUAGE 195 (1956). A general reference on
componential analysis or ethnographic semantics is collected at 67
AM. ANTHROPOLOGIST No. 5, pt. 2, 259 (1965) and in B.N. Colby,
Ethnographic Semantics: A Preliminary Survey with Comment, 7 CUR-
RENT ANTHROPOLOGY 3 (1965).
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
action, the componential analyst12 conveniently transforms a
useful pro- cedure for establishing the structural materials for
constructing mem- bers' and researchers' ideal types into a model
that tends to be truncated and formally stated prematurely.
Denotata13 are meaningful to members or researchers because they
presuppose what "anybody knows," the tacit knowledge or background
expectancies that breathe life into members' categories when they
become detached from everyday natural encoun- ters. Asking members
via standardized eliciting procedures for labels or categories used
routinely to comprise some group's terminological system, is not a
direct or necessarily most accurate or most comprehen- sive
procedure for understanding how socially organized activities
emerge, maintain stability over time, change, become diffused, or
terminate.
One way of noticing this problem is by examining the ways in
which members use structural categories or labels to depict their
own or others' fate or circumstances, while on other occasions the
same labels or categories are called into question by reference to
the details of par- ticular cases as the relevant terms to
characterize kinsmen or kin rela- tionships. Legal materials
continually reveal such phenomena directly or by reference to
expert testimony by social workers, psychologists, and
psychiatrists. Thus, the term "mother" may be invoked as a struc-
tural category in a child custody case where its use is intended to
convey "usual" meanings about the importance of the "mother-child"
relation- ship. The quotation marks around "usual" are intended to
tell the reader that it is what "anyone knows" but seldom made
explicit that becomes the basis for using the term. Thus, when used
as a denotative structural category the term "mother" may imply
certain "rights and duties" attached to persons occupying some
conventional notion of status.
12. Denotata are minimal classes or categories of real or
imagined objects, events and relationships. Following Morris'
(1946) usage, the set of possible denotata for a word is its
designatum, a more general class of which any par- ticular
denotatum is a member. The criteria for being in the class are what
the word signifies, its significatum.. . . Componential analysis
systematically contrasts the sets of denotata of the labels in a
terminological system in order to arrive at hypotheses regarding
the variables and their values that will most elegantly predict all
of their respective denotata. The result is an inductively
developed and validated "model" of the conceptual organization of
an ideational domain, regardless of how accurately it represents
the actual conceptual organi- zation in other than the analyst's
"head."
See generally, Goodenough, Yankee Kinship Terminology: A Problem
in Componential Analysis, 67 AM. ANTHROPOLOGIST, No. 5, pt. 2, 286
(1965).
13. Supra note 12.
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The structural notion could be extended to imply (but not make
precise) certain affectional states expected of "mothers" with
respect to their children. But a few modifying adjectives attached
to "mother" could also connote that the structural notion is to be
made problematic such that the particular person occupying the
status is a "mother" in "name only." Notice that the general rules
applied to kinship terms (or any others routinely employed by
members) presumably stand as "closed" denotative meanings so long
as we do not designate a typology of "mothers" that would interact
(in situated ecological settings) with a typology of "children,"
"fathers," and the like. When we shift to actual cases, the general
rule is strained even more for the structural terms may now be
attacked from a variety of perspectives in an adversary system so
as to call into question how any particular "mother" is to be
adjudged by some tribunal, expert witness, or other familial or
other kin relations.l4 But the "good" or "bad" judgments of
familial mem- bers presupposes a notion of the "normal family"
against which the structural features, as merged with behavioral
activities, can be com- pared. Consider the following statements on
"Yankee kinship":
14. See the recent Iowa Supreme Court case of Painter v.
Bannister where the issue was one of custody over a boy who went to
live with his maternal grandparents (Bannister) after the boy's
mother died. The father, remarried, sought to return the boy to
California. A few remarks from this case may illustrate my
point:
The trial court does not say which of Dr. Hawks' statements he
felt were ex- aggerated. We were most surprised at the
inconsequential position to which he relegated the "biological
father." He concedes "child psychologists are less concerned about
natural parents than probably other professional groups are." We
are not inclined to so lightly value the role of the natural
father, but find much reason for his evaluation of this particular
case.
Mark has established a father-son relationship with Mr.
Bannister, which he apparently had never had with his natural
father. He is happy, well adjusted and progressing nicely in his
development. We do not believe it is for Mark's best interest to
take him out of this stable atmosphere in the face of warnings of
dire consequences from an eminent child psychologist and send him
to an uncertain future in his father's home. Regardless of our
appreciation of the father's love for his child and his desire to
have him with him, we do not believe we have the moral right to
gamble with this child's future. He should be encouraged in every
way possible to know his father. We are sure that there are many
ways in which Mr. Painter can enrich Mark's life.
Notice that the "best interest" of the child is best served by
the grandparent rather than the "natural" father. The "fact" of
Mark's "well adjusted" life with his grand- parents is given more
weight than the "rights" of the "natural" father that the court
labeled a "bohemian." The court makes reference to differences in
"philosophies of life" and "value systems" between the Bannisters
and the Painters, but notes that "We are not confronted with a
situation where one of the contesting parties is not a fit or
proper person," yet makes clear that the father's "bohemian" way of
life is "romantic, impractical and unstable."
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Kinship is regarded as following from biological procreation.
Concep- tion is seen as resulting from a single sexual union of a
man as genitor and woman as genetrix; and prenatal growth is
independent of subsequent sexual unions. My culture allows for an
individual to have only one genitor as well as only one genetrix,
unlike Lakalai culture in New Britain, which allows for the
possibility that several men may be cogenitors of the same
individual. My culture also disallows the possibility of conception
without a genitor, unlike Trobriand Island culture which has the
dogma that men play no essential part in procreation (Malinowski,
1932). Each individual must have a genitor as well as a
genetrix.
As genitor and genetrix of joint progeny, a man and woman are
sup- posed to have established a common household independent of
the house- hold of any other adults. Following traditional
procedures known as marriage they are supposed to have entered into
lifelong agreement to maintain such a household, to confine their
sexual relations to one another, and to be jointly responsible for
the care, socialization, education, and sponsorship of their joint
progeny. No man may be married to more than one woman, or woman to
more than one man, at a time. Remarriage by the survivor following
the death of his (her) marriage partner is permitted. Although
marriage is ideally for life, there are formal procedures for ter-
minating a marriage, divorce and amnulment, after which a man and
woman are free to marry again. The common household established by
a marriage is dissolved following a divorce or annulment....
The foregoing ideal of what is supposed to be does not always
obtain in fact. A man and woman may establish a common household
without having gone through a formal marriage. Their marriage may
be dissolved, formally or informally. Men and women may have sexual
relations and procreate with other than their marriage partners.
Responsibility for the care, socialization, education, and
sponsorship of progeny may be assumed by other than the genitor and
genetrix. The cultural principles for classi- fying kin
relationships necessarily takes account of such departures from the
ideal.15
The above quotation on American family organization is of
interest because it is the product of considerable idealized tacit
knowledge. But the conception is not likely to come from the kinds
of elicitation procedures recommended by the proponents of
componential analysis, rather from knowledge obtained via
participation and observation of actual group activities where both
linguistic and para-linguistic materials are utilized for deciding
how members understand events and objects and arrive at decisions
about "what happened" and "what should hap- pen." It is easy to
arrive at equivalence classes through the elicitation of kinship
terms in a given culture if the procedures of componential analysis
are utilized, particularly if the researcher seeks to demonstrate
use by reference to reported idealized natural events in the daily
activ-
15. Goodenough, supra note 12, at 262-63.
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ities of the group studied. But the equivalence classes would be
like general rules or policies where it is assumed that a given
rule is adequate for saying that particular cases fall within or
outside of the set. What is of interest about kinship terms, and
the rules for applying them to some population, is that not only
are the structural sets not all that clear (as will be discussed
below), but as we move towards the daily social relationships of
actual encounters we are likely to find that com- ponential
analysis does not account for key elements of familial social
organization. A comparative study of legal statutes on divorce,
therefore, is like studying the grammars of several languages, but
disengaging the statements therein from the practiced and enforced
activities of members. And like grammatical rules, the application
of the statutes presupposes a stock of knowledge about social
organization and "what everyone knows." The formal terms, or
modifications of them that pre- sumably correspond to special
usages, cannot be understood apart from the tacit knowledge or
background expectancies and emergent con- tingencies of actual
encounters between members. Nor is it possible to discern how
socially organized activities systematically violate or evade the
formal conditions and use of kinship terms, much less how such
activities change over time even though there are no noticeable
changes in formal arrangements. Hence we can suggest that
"exceptions" to the general rules or practices constitute a
collection of alternative "rules" that could be called another
"grammar" of kinship and marriage. But there are two types of
problems here: (1) a difference in usage and organization that
challenges the structural interpretation rendered by Goodenough
directly; and (2) the problems of how day-to-day con- tingencies
contribute, by the closing of practical decisions by members and by
professional legal action, to the designation of something as
having "happened" and hence establishing some basis for counting
the object or event as something palpable.
One cogent argument in support of the first problem of the
relevance of componential analysis is:
One of the first things that anyone who works with American
gene- alogies notices is that the system is quite clear as long as
you take Ego as the point of reference and do not venture far from
there. But as one goes out from Ego-in any direction-things get
more and more fuzzy. This fuzziness, or fade-out, is seen in many
different ways. Most funda- mental, of course is the fact that
there is no formal, clear, categorical limit to the domain of
kinsman. Or, to put it in another way, the decision as to whether a
particular person is or is not a kinsman is not given in any
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
simple categorical sense. One cannot say that all second cousins
are kins- men but all third cousins are not....
There is one especially interesting way in which this fuzziness
of boundary is expressed, and this is through the Famous Relative.
We not infrequently encountered the statement that So-and-So, a
famous per- sonage, was a relative. Sometimes the relationship was
traceable, some- times not. When it was traceable, it could clearly
be seen that this was the only relative of such distance on the
genealogy, whereas closer rela- tives were unknown or unheard
of.
There are really two different elements that account for the
fuzzy boundary. One is the absence of any effective boundary rule,
for the rule itself is infinite in its coverage. The rule is that a
relative is someone related by blood or marriage. Hence, as some
informants were quick to point out, everyone descended from Adam
and Eve is related.
The second element is the fade-out principle, and it is really
this which limits the network of kin. Ethnographically, informants
express this in terms of a "close-distant" dimension, saying that
certain relatives are "close" while others are "distant" and yet
others so distant as not to be counted as relatives.16
Members have discretion in "closing" kin relationships so as to
generate sets that enable one to count and partition presumed
equivalence classes when generalizing about groups or entire
populations. The fact that many variations can exist in a country
like the United States complicates the usefulness of the
componential analysis particularly if the researcher is interested
in how the use of kin or other terms is articulated with everyday
social encounters such that decisions are contingent upon such
usage and binding upon Ego and others. The "boundary" and "fade-
out" problems emphasize the importance of the nuclear family when
seeking precise measures of kinship via componential analysis, and
it is presumed that the closer we get to the inner core, the more
predictability or correspondence between kin terms, their use, and
the decisions and relationships that obtain in daily encounters.
Notice the measurement problem suggested in the following statement
by Schneider:
What Americans call "distance" consists in a chain of unbalanced
dyads, and because they are unbalanced they dribble, and dribbling
means that they fade out. If all members of a set are of equal
importance then the set stands as a unit. But precisely because the
elements in a dyad are, with one fundamental exception, never of
equal importance chains of dyads consist in chains of dyads of
diminishing value and hence they fade
16. Schneider, American Kin Terms and Terms for Kinsmen: A
Critique of Goodenough's Componential Analysis of Yankee Kinship
Terminology, 67 AM. ANTHRO- POLOGIST, No. 5, pt. 2, 288, 290-99
(1965).
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away. The anomaly of the Famous Relative is simply a relative
who by virtue of some attribute external to kinship, takes on a
wholly inconsistent importance and so sticks out along the fading
chain of relatives who be- come less important as they go farther
away.17
The significance of Schneider's statement is to be found in his
remark that the members of a set of dyads are "never of equal
importance," rather of "diminishing value and hence they fade
away." Therefore, Ego may close or create a set in some verbal
report to a researcher or others, but there remains the problem of
not only the Famous Relative, but also any other dyad both
internally and across dyads for Ego and others when we seek to
compare the meaning of kin relationships. If attributes external to
kinship can alter some "fading chain of relatives," then the
significance of kin (or other formal designations like "nuclear
family") terms for understanding everyday social encounters and the
structure of socially organized activities over time is equivocal.
For, as Schneider notes: "What is called 'the family' cannot be
treated as a whole unit, having corporate membership qualities, but
must be treated as a system of unbalanced dyads."18 The
significance of usage by members of terms like "my family" or "he
is a relative," or similar usage by law-enforcement agents or
counsel or judges to the effect that "the family" should stay
together, or the "mother's role or relationship" is "basic" to the
child's "welfare," or the husband was not "fulfilling his role as
father," is not to be found in formal analysis of kin terms, nor in
members' use of such terms when being asked about how or whom do
they address as "relatives." 9 Such usage carries unstated tacit
knowl- edge and presumptions about actual and normative or ideal
activities that are not acknowledged and seldom made problematic
empirically. The formal analysis of kin terms and usage cannot be
disengaged from the occasions of use, and the common sense
knowledge presupposed in their use that is integral to
understanding and communicating mean- ings, but remain integral to
the interpretation of "what happened."
The importance of day-to-day contingencies in "closing"
unfolding activities to create a set where determinate objects and
events can be said to have '"appened" is not to be found by merely
examining the occasions in which police, probation, social welfare,
psychiatric, or
17. Id. at 293. 18. Ibid. 19. Schneider makes the point that
"relative" can be used either for a blood
relative alone or for a "relative by blood or marriage." Id. at
301.
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
general witnesses are consulted to discern "what happened." The
use of categories by members carries unstated taken-for-granted
background knowledge. Categories are usually truncated descriptions
detached from any examination of the referents or objects or
sequences of events that led to their being designated by some
label or set of labels.20
I call the reader's attention to the ways in which both surveys
and componential analysis (ethnographic semantics) seek to utilize
members' categories for mapping common sense or folk elements or
practical knowledge into domains of relevance "closed" by
elicitation procedures such that an actual set is said to exist
that permits classification or taxonomic procedures for ordering
objects and events. In the case of surveys the researcher presumes
he "knows" the structural meaning of the terms used (or that they
have been clarified by consulting a native speaker, perhaps
himself, and that a pre-test has explored the meanings) when
fixed-choice or open-ended questions are posed for the respondent.
For the student of ethnographic semantics the elicitating procedure
is designed both to discover categories and constructions utilized
by mem- bers and to "test" their relevance in different projected
ethnographic settings. For the survey researcher language is merely
a possible tech- nical obstacle (naively employed) to posing the
"right" questions; it is not a variable condition of obtaining
members' everyday meanings so much as trading on everyday meanings
implicitly as a basis for eliciting information about past or
hypothetical future events and decisions. The student of
ethnographic semantics is very sensitized to the significance of
linguistic structure and usage in both posing and interpreting
ques- tions and answers. The use of members categories and
constructions, however, is concerned primarily with ideals or
structural meanings (meanings "closed" by theoretical fiat or
unstated common sense knowl-
20. There is a resemblance between fixed-choice questionnaires
(and open-ended ones as well) and the eliciting procedures
described by students of ethnographic semantics. In both cases
there is either a presumption that categories are already known to
the researcher and respondent that are identical in their
structural meaning as in the questionnaire items of surveys, or the
use of a contact language, for example, or ethnographic observation
that presumes some similarity between the ethnographer's knowledge
of his own culture and the one he is studying to enable him to
identify "houses," "places of religious worship or ceremonies,"
"hunting," and the like, so that attempts to ask questions
"correctly" in the native language about specific categories and
constructions is possible. When students of ethnographic semantics
speak of "frames," they are using a sort of survey designed for
cultures where no dictionary exists for formally (structurally)
mapping the two languages. See for example Mary Black & Duane
Metzger, Ethnography of Law, 67 AM. ANTHROPOLOGIST, No. 6, pt. 2,
141, 146 (1965).
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edge), and while such meanings may be clarified when examined in
the context of natural conversations, in the case of surveys they
may become and remain detached or disengaged from the emergent
inter- action scenes in which they assume particular significance,
and from which general rules or practices may be inferred by both
members and researchers. The following points must be
separated:
1. The "closing" of events or objects seen as common sense
group- ings of elements by members is itself a feature of practical
action. Such "closing" enables the actor to "get on" with his
everyday affairs and order his existence according to something
like a rule, or collection of rules. Notice that "members" can be
other lay members of the group or community as well as witnesses,
police officers, probation officers, lawyers, judges, members of
juries, jurisprudential theorists, and scientific researchers.
Detailed attention to the public character (via verbal and
non-verbal behavior) of the "closing" procedures used reveal the
various ways "members" decide something is "known" or
"happened."
2. When the researcher utilizes particular procedures for
eliciting information from informants or respondents there is an
automatic com- mitment to procedures or strategies of "closing"
events and objects, and if the researcher is not sensitive to the
possibility of forcing a "grid" or "filter" over or on the members'
natural ways of expressing themselves, then the fidelity of how
members close their practical activities, so as to provide for
their socially organized character, will be distorted or
transformed by the procedures themselves.21
3. The measurement procedures employed, therefore, must not ob-
scure how information will be obtained, but chosen so as to clarify
members "closing procedures" and the strategies or procedures
employed by the researcher. Notice that an emphasis upon naturally
occurring events, assuming they permit some form of objectification
that seeks to minimize the perspectival view of the observer, seeks
to discover members' usage of categories, and the rules they
utilized for "closing" and "opening" events and objects to further
perception and interpre- tation.
The reader's attention is directed to the problems of deciding
how members reach or accomplish activities whereby kinship,
marriage, and
21. See Ch. 1 in A. CICOUREL, METHOD AND MEASUREMENT IN
SOCIOLOGY (1964).
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
divorce terms become meaningful when contrasted with what is
prac- ticed and enforced in some community or society. Recent work
by Kay notes that a broader perspective would show considerable
variation, while her present-day California cases can be used as
instances of existing but changing conceptions of notions like "the
family," "divorce," the "rights" of children or parents in custody
cases.22
FAMILY ORGANIZATION AS STRUCTURAL MEANINGS AND PRACTICAL
Ac'Ivrrmi;
I have been using "structural meanings' as the "closing"
attributed by the researcher to the members' reports about the use
or existence of kinship terminology. Another type of "structural
meaning" might be terms invented by the researcher to explain
members' terms. I assume that the researcher's use of an informant
(including the researcher as informant) leads to a formal system of
meanings that are disengaged from the use of such terms in the
emergent contextual settings of every- day activities.
Both members and researchers (who may also be members if it is
their own society or culture) may have the same or similar
structural terms and meanings for ordering their respective
practical activities of living or engaging in systematic research.
But members seldom are compelled to specify the referents for the
structural terms they use for classifying, evaluating, or
organizing their thoughts, meanings, per- ceptions,
interpretations, and actions. On the other hand, researchers are
expected to pay careful attention to the problem of objectification
and what is selected for the verification of theories. One serious
con- sequence of the overlap in members' and researchers' use of
structural categories and constructions is that conversations
(including eliciting procedures and interviews with questionnaires)
and documents can be carried on and read without any specification
of referents or demand of a "check-out" as to what was "really"
said, observed, or thought to have "happened."
Formal analyses of legal statutes and cases and kinship
terminologies are of value in understanding day-to-day social
organization and change, but we must not confuse (1) some
correspondence between members'
22. H. Kay, The Family and Kinship System of Illegitimate
Children in California Law, 67 AM. ANTHROPOLOGIST, No. 6, Pt. 2, 57
(1965).
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and researchers' formal classification systems and their use to
explain "what happened," with (2) some correspondence between
members' use or explication of formal terms and those properties of
action scenes that were observed and interpreted in particular ways
at the time of their occurrence, or (3) the researcher's intended
correspondence be- tween the structural meanings attributed to
legal statutes and cases and formal kinship terms, and the ways in
which such terms (and their presumed meanings) enable the
researcher to account for members' actual practical activities as
opposed to their reports of what usually "happens."
When we examine law cases, as instances of events that
"happened" as stated in the available materials, we must accept the
validity of the information in so far as members known as lawyers
and judges place or impose "factual status" on the information
therein. These cases may show how members labeled "mother" or
"father" or "child" or "uncle" are or are not "really" "mothers,"
"fathers," and so on, for some particular or general issue of right
or duty. The consanguinal and affinal structural meanings may not
be challenged directly, but the structural meanings may be invoked
in a categorical way to evaluate some familial problem, with the
contextual practical activities of everyday life occasionally
invoked as particular instances that "prove" the general rule.
Structural meanings of kinship are also challenged every day in
juvenile delinquency and child neglect cases in the United States,
and families are broken up by court order even though the parents
stay together and do not seek a divorce. The "community" via the
court decides that certain persons labeled "parents" are unfit to
raise children and legally removes the children from the home.
Parents that may be described as "poor" or "irresponsible" or
whatever by police and proba- tion officers and subsequently
divested of children may appear as "stable" from the usual
"facesheet" and attitude data that a survey or census materials
might pick up on family life. Structural or ideal typical meanings
of kinship and family life, as employed both by lay members and
persons engaged in law-enforcement and legal activities, show con-
siderable variability in what and how something is "known" about
family activities, and pose difficult problems for the researcher
who seeks to articulate structural meanings with occurrences as
seen by members and objectified by researchers during and after the
fact. What passes as "evidence" for both the laymen and
law-enforcement and legal per- sonnel is not always clear, for
there exists a strong tendency to force
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
particular features of a given situation or sequence of events
into more general categories so that general rules can be applied
for reaching a "solution" to "what happened" and "why."
The historical study of childhood by Aries,23 the commentary by
Bohannan on marriage and the family,24 and the recent study of
illegiti- mate children in California law by Kay25 all point to
extensive variations in conceptions of kinship and family life in
different societies or cultures. These variations mean that
structural meanings cannot be divorced from the "folk-systems" or
practical activities whereby members come to utilize general
policies or rules embedded in structural meanings as justifications
for action contemplated or taken. Legal statutes provide structural
meanings of kinship terms and lead to the formal acceptance of
various but not all existing practices in the community. Particular
cases ele- vated to general rules often take on the aura of
"tradition" and "sta- bility." But in the United States the
enormous variations in family law not only compound the
difficulties of articulating structural meanings of kinship with
actual practices, but also provide a broad base for comparative
study of social change within the same country. The sig- nificance
of legal statutes and case law for changing general social
conceptions of kinship and family life by members has previously
been suggested by Kay.26
The cases found in police, probation or court files are not
clear as to the kinds of social encounters that occurred in the
assembly of "closed" categories employed by law-enforcement and
legal personnel in arriving at their depictions of "what happened."
The bounded character of grammatical structures facilitates
communication, but in particular cases of unfolding interaction and
changing social relationships, it is not clear
23. P. ARIES, CENTURIES OF CHILDHOOD (1962). 24. P. BOHANNAN,
SOCIAL ANTHROPOLOGY (1963). 25. Kay, supra note 22. 26. The
California courts, in dealing with cases involving the claims of a
child born illegitimate to be treated as legitimate, have worked
out a family system based upon the common residence pattern of
father, mother, and child and upon the factual performance of the
roles of parent and child within this setting be- tween persons not
biologically related. Yet even this statement cannot be taken as
the law's final word on the family. The law defines terms for a
limited pur- pose only; and in a common law system, each definition
must be understood in the light of the cases that give it
substance. In the case of the family of the illegitimate child, the
courts themselves are working up another "trouble" case that will
test the definition arrived at for the moment: the problem of the
house- hold of the unmarried father and his child.
Kay, id., at 75.
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how we are to honor descriptions contained in anthropological
accounts or sociological accounts,27 much less those contained in
law-enforcement reports and documents or court cases. Kay,28 like
Schneider,29 provides abstract case interpretations of kinship that
challenge the results of struc- tural accounts of kinship, but does
not address the problems of objectifi- cation and verification of
action scenes for both members and researcher that generate
"adequate description" to permit some kind of comparative analysis.
While I do not wish to generalize concerning complicated activities
like trials, appellate court decisions, and legislative committees,
I would argue that the kinds of practical theories about objects
and events in everyday life that law students invoke in class would
be com- mon in other areas of the legal system. My notes from a
family law course suggest law students consistently invoked pieces
of theories, argu- ments, conjectures, and the like from classes
they had had as under- graduates, as well as their own everyday
experience as laymen. The ideal standards presupposed in speaking
of "the family" or some member of the family would be invoked as
structural meanings in some cases, and then challenged directly
when simulating the prosecution of one or both of the parents. In
mock telephone conversations between student lawyers or mock
confrontations in court each seeks to negotiate his client's case
by allusions to "facts" and adverse consequences or "obvious"
conditions (e.g., "Why don't I file an action on the grounds of
mental cruelty . . . forget the adultery . . . seeing that your
client is desirous of a divorce . .
."). The descriptions participants use in discussing legal
matters pertaining to divorce (or criminal) actions are invariably
truncated expressions of "what happened," but where the reader, the
listener, and often the researcher must "fill in" that which is
assumed or imagined to have "happened."
I am not arguing that such information is useless or unreliable,
but that the sociologist must be prepared to invoke his own
theories of how members not only produce such statements from
conversations, gestures, voice intonation and the like, but how
members variously situated in the legal system are likely to
interpret such statements. Phrases like "the marriage was a normal,
happy one," or "unhappy differences arose," or "she drank
moderately," or that "there were repeated quarrels," do
27. For example Goode, Family Disorganization, in CONTEMPORARY
SOCIAL PROB- LEMS 528-29 (Merton and Nisbet ed. 1966).
28. Kay, supra note 22 at 75. 29. Schneider, supra note 16.
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
not carry invariant structural meanings much less situational
meanings. The comparison of statutes with truncated actual cases
provides the basis for encouraging the law student to develop
theories, learn how to use "rapport" with clients to extract
information, negotiate with other lawyers or judges, and the like.
But the various types of information produced are not available in
the classroom and have seldom been studied in natural situations. I
assume that the kinds of conjectures advanced by the student lawyer
carry over to practice. The training that precedes actual practice
incorporates common sense theories of the "causes" of divorce, the
"role" of the father, the "mother's person- ality problem," what is
"best" for the children, and so on. The law student is trained to
modify his practical theories and reasoning so that a tight and
"logical" argument is advanced, one that can draw upon existing
statutes and precedents for fitting the particulars of a case into
a more general rule so that each can be used to justify the other.
In confronting material from clients, the lawyer must decide "what
happened" by utilizing whatever theories or hunches he can muster
so that he fits the particulars of a case into other cases as
prece- dents and/or into existing general rules. This means
"closing" events and the evaluation of objects so they can be
"coded" and/or "counted" as instances of known or knowable
sets.
The grounds for divorce are especially interesting to the
sociologist because of the vagueness and day-to-day uncertainty of
married life for many people, and the abstract ways in which legal
statutes are written to cover events and objects that are part of
everyday social organization. The kinds of information submitted by
clients to argue, respectively, that each was treated in ways that
deviate from the structural meanings of "proper" married life, are
instructive because such materials point to the difficulty of
establishing the credibility of "findings" by members acting in the
capacity of client, witness, lawyer, or judge.
A court transcript may reveal fairly graphic accounts of "what
happened" from the wife's point of view in divorce proceedings, but
the contextual settings and the detailed conditions of the
encounters are frequently vague. The plaintiffs attorney may employ
leading ques- tions throughout, effectively putting many ideas into
the court record that probably followed pre-court interviewing
about what would be said in court. The counsel for the defense may
rebut testimony by accusing the wife of "starting arguments," going
"out with other men"
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LAW AND SOCIETY REVIEW
during their later separation, "attacking" her husband
physically, neg- lecting the home to run a business, and the
like.
In arguing cases, both lawyers seek to invoke precedents to
support their particular client. The descriptions given can be seen
as "convinc- ing" as argued from either side. How it would be
determined that what was described by either party had something or
nothing to do with what "really happened" is not clear from the
kind of information given. If the marriage were to stay intact for
another twenty years a subsequent survey might reveal retrospective
accounts about how the marriage had "its troubles" but was a
"successful" one. We have little basis for dis- tinguishing
"successful" from "unsuccessful" marriages using the descrip- tions
of participants at different points in their careers, for marriages
are temporal events that are historicized frequently. But members
of the community's legal organization, like many sociological
students of the family, presume a model of "normal" marriage, just
as we all assume that kinship terms have structural meanings that
are invariant to the particulars of everyday social organization.
They can be applied success- fully to particular cases even though
there might be exceptions. The testimony of the plaintiff and
defendant are geared to eliminating contingencies that could make
either "look bad" and, of course, this is a well known procedure in
public hearings.
With the material admitted as evidence, however, it is possible
to impute or add or "fill in" additional claims so that a
particular version of "what happened" can be "closed." While we may
not be able to specify what happens in the home on a day-by-day
basis, we can avoid the error of accepting descriptions without
asking how they might have been assembled, thereby provoking
particular "closings" and excluding others. The issue may not be
how we are to deter divorces from occurring by changes in the law,
or simplify the procedures for obtaining a divorce, but how married
persons manage their daily activities such that similar events lead
to different types of decision-making about con- tinued marriage or
divorce.
The problem of how practical decision-making leads to different
courses of substantive action (continued marriage vs. divorce),
even though it is not clear how the environments of the
participants differed or were similar, is usually separated from
the problem of how members seek divorces when one or both parties
are determined to do so and have the official or unofficial help of
legal agencies. What is of interest to students of the family and
social organization is that the meanings
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
of kinship terms and the family as a "basic unit" of our society
or any other society, are not clear as we move from one
organizational setting to another, or when we consult members as to
relevant meanings as opposed to usage and actual behavior in
day-to-day living. We may say that: "The family is the basic unit
of our society, and .... Since the family is the core of our
society, the law seeks to foster and preserve marriage." But when a
marriage has failed and the family has ceased to be a unit,
empirical clarification is required of such phrases as "basic unit"
and "the core of our society," as opposed to saying that a
"marriage has failed" or that "the purposes of family life are no
longer served." Studies of kinship, marriage, and divorce, like
phrases suggesting "what the law means" with respect to the family,
obscure the articulation of practical decision-making of everyday
family life with the meaning of kinship terms, and the practical
decision-making of legal agencies in granting or not granting
divorces.
COMPARATIVE FAMILY LAW
Comparative family law, like the comparative study of legal
statutes, is similar to the study of formal systems of kinship:
both stipulate ideal general rules for marriage, divorce, and
duties and obligations binding upon members of the community or
society or culture in question. One generalization about divorce in
different countries would follow what American legal scholars have
said about how routinized divorce has become in virtually all
American states. Despite policy differences stated in statutes and
actual cases, the issue boils down to the question of under what
kinds of quasi-fictions different states agree to grant di-
vorces.30 The meaning of "the family," or particular members and
their rights and obligations, becomes problematic depending upon
the prac- tical issues at hand. Many divorce actions amount to
cooperative fraud among all of the participants, including the
presiding judge. Legal procedure, therefore, becomes instrumental
in challenging the structural meanings of kinship and the
"sacredness" of the family as a unit por- trayed in folk beliefs
and institutionalized in legal statutes and prece- dents. The lack
of accurate statistical information makes it difficult to
30. See M. Rheinstein, Trends in Marriage and Divorce Laws of
Western Countries, 18 LAW AND CONTEMP. PROB. 3 (1953); Rheinstein,
The Law of Divorce and the Problem of Marriage Stability, 9 VAND.
L. REV. 633 (1956).
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LAW AND SOCIETY REVIEW
pinpoint the meaning of divorce statistics, much less how
marriage breakdown is to be specified. The legal requirements are
often formal obstacles, contradicting what is practiced and
permitted in the com- munity. Hence, in Argentina members may
ignore the legal channels altogether; but within the community and
among friends and relatives the alignments may alter structural
meanings considerably. The couple may remain legally married with
each now having different "families" where consanguinal relations
are in part preserved for children, yet affinal relations follow
unclear rules depending upon parental friendships.
Rheinstein notes that it is difficult to pinpoint when you have
actual separations or abandonment, and even more difficult to
uncover exist- ing arrangements. Hence, he notes that it may do
little good to count decrees or speak about the "stability" of the
farmly when so many persons are remarrying and the negative
consequences for children and partners are not clear. Chile, for
example, permits divorce but no re- marriage. Yet it is possible to
obtain annulments in Chile, even when several children exist, and
then re-marry. The same kind of fictions that obtain in the United
States operate in Chile, and social class lines tend to be the
deciding factor, though additional influence may be necessary when
more than one annulment is sought.31 In Argentina divorce is not
permitted but legal separation is common.32 One or both
31. While annulments are possible in Chile, there are
considerable costs involved that effectively preclude many from
seeking this procedure for terminating marriage. Further,
impressionistic accounts obtained from Chilians suggest that
considerable col- lusion and fraud often accompany the granting of
an annulment. Except in aristocratic religious circles, the variety
of living arrangements that result from annulments, legal
separations ("divorces"), and the like, leads to notions of
everyday family life not to be equated with structural meanings
attributed to legal statutes. How members (religious versus
non-religious in particular) located in positions of authority
interpret and "close" cases is to be understood by reference to how
clients present the practical circumstances of their cases. Having
"friends" at each step in the process of securing an annulment and
"knowing" that the judge involved has "favorable views" toward
annulments, all become part of the game. "Divorce" in Chile seems
also to mean "legal separation" in American terms. But we have no
objectifiable information as to the daily consequences of such
legal action in either country and their contrasts with structural
meanings.
Cf. M. SOMARRIVA UNDURRAGA, DERECHO DE FAMILIA (1963). 32. The
same Spanish equivalents for "adultery," "abandonment," and the
like ap-
pear, but there is no way of comparing the use of terms in
statutes with application to everyday activities. The Argentine law
states that marriages in Mexico and Uruguay do not constitute
bigamous offenses. The term "divorce" in Argentine means "legal
separation," with neither party eligible for remarriage in
Argentina. Impressionistic material obtained from field work in
Argentina by the present writer suggests that many "young
intellectuals" will frequently re-marry in Mexico or Uruguay. Many
middle and upper income families will avoid legal proceedings,
separate and become married in
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KINSHIP, MARRIAGE, AND DIVORCE IN FAMILY LAW
spouses may seek to marry in Uruguay or Mexico (by mail), and
Argen- tine law allows the children of both "marriages" some form
of inheritance even though the children from the Uruguayan marriage
are illegitimate according to Argentine law.33
CONCLUSION
I have argued that we should view members' solutions to "social
problems" as the focus of study. Questions about the impact of
divorce upon the "family," the "sacred institution of marriage,"
and kinship arrangements pertaining to family members' "rights and
obligations," become contingent upon a study of the interaction
between normative talk by members and their actual practices in
seeking further inference and action.
We cannot escape our reliance upon members' categories and con-
structions to understand how an environment of objects is seen from
"within." We can avoid the circularity of an enterprise that
confuses members' categories with researchers' categories, such
that our questions evoke linguistic responses from members because
we trade on rather than study common sense meanings.
Uruguay or Mexico. Many lower income families never enter into
legal procedures be- cause of presumed high costs of a legal
separation. Members' views of their living arrangements seem to
contradict structural meanings of "the family" and notions like
"father" and "mother." But even legislative interpretations of
extra-legal or illegal action seem to engage in the fictions found
in the United States in that laws have been passed that tacitly
recognize the violations of the basic canonical roots of Argentine
family law.
Cf. 1 G. BORDA, TRATEDO DE DERECHO CIVIL ARGENTINO (1961); A.
MORELLO, SEPARACION DE HECIIO ENTRE CONYUGES (1955); and A. SPOTA,
La Ley de Matrimonio Civil, 1881-1888 in ANALES DE LEGISLACION
ARGENTINA (1955).
33. The problem of separations in Argentina may become quite
involved when both spouses re-marry in Uruguay and both have
children from their earlier marriage, and further, when their new
spouses are also separated in Argentina with children from former
marriages. The problem of inheritance is minor in comparison with
kinship terminological confusions and the kinship and personal
social relationships that are altered. The problem is also acute
when separated couples who marry outside their country enter into
contracts within Argentina or seek visas to travel as married
couples from consulates in Argentina.
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Article Contentsp. 103p. 104p. 105p. 106p. 107p. 108p. 109p.
110p. 111p. 112p. 113p. 114p. 115p. 116p. 117p. 118p. 119p. 120p.
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Issue Table of ContentsLaw & Society Review, Vol. 1, No. 2
(Jun., 1967), pp. 1-158Front Matter [pp. 1 - 2]From the Editor:
Personnel and Progress in Sociolegal Research [pp. 3 - 6]Law and
Society Association: President's Report [pp. 7 - 8]Programs in Law
and Social Science [pp. 9 - 13]Criminal LawThe Practice of Law as
Confidence Game: Organizational Cooptation of a Profession [pp. 15
- 39]The Durham Rule in Action: Judicial Psychiatry and Psychiatric
Justice [pp. 41 - 80]
Family LawInstitutions of Divorce, Family, and the Law [pp. 81 -
102]Kinship, Marriage, and Divorce in Comparative Family Law [pp.
103 - 129]Critique on Cicourel, Bohannan, and Huckleberry [pp. 131
- 138]
Book Reviewsuntitled [pp. 139 - 143]untitled [pp. 144 -
147]untitled [pp. 148 - 152]untitled [pp. 153 - 158]
Back Matter